The matter of PACER fees

Why are we paying for information in the public domain?

June 01, 2018

The PACER database was established in 1988 to provide the public with fee-based online access to federal court filings and, in the 30 years since, individuals and organizations have come to rely on it for their legal research needs. While researchers value PACER as a key resource for federal court documents, criticism has been mounting over requiring payment of fees in order to access “public” information.

PACER generated $920 million between 2010 and 2016 and, with the system taking in far more than it costs to operate, the office within the federal judiciary responsible for collecting the fees began using the surplus to fund general court technology improvements and other programs that have little or no direct benefit to the researching public.

Consequently, after years of criticism from PACER users and government watchdog types, the National Veterans Legal Services, National Consumer Law Center and Alliance for Justice brought a federal class action lawsuit on behalf of all PACER clients in 2016. The suit accused the Administrative Office of the U.S. Courts with charging PACER users more than necessary to operate the system in violation of the E-Government Act of 2002, and maintained the excess should be returned to users.

Court finds some PACER fees improperly spent

The conflict centers on interpretation of the law that originally established PACER and whether it allowed for non-PACER expenditures. The judiciary argued that it is allowed to use PACER funds for anything related to “dissemination of information through electronic means.” The E-Government Act, which was an amendatory law, directed expanded use of the Internet throughout the federal court system but did not appropriate additional funding for it, leaving that pretty much to the courts to figure out.

A Washington, D.C., federal district court recently agreed with the plaintiffs that the judiciary improperly spent $200 million in PACER fees collected from 2010 to 2016. U.S. District Judge Ellen Segal Huvelle found the fees were misused to fund what the judiciary labeled “congressional priorities,” which included victim-notification and juror services and “courtroom technology.”

“The Court does not see how flat-screen TVs for jurors or [courtroom spectators], which are used to display exhibits or other evidence during a court proceeding, fall within the statute as they do not provide the public with access to electronic information …” the judge wrote.

Judge Huvelle ruled the judiciary misused $100,000 of PACER funds on an electronic notification program for local law enforcement agencies to track offenders and $2 million for a Web-based juror communication system. However, she rejected the claim of the PACER user plaintiffs that the courts are allowed to charge only enough to cover the “marginal” cost of operating PACER, stating there was no support for that idea in the legislative record.

PACER’s history

PACER stands for Public Access to Court Electronic Records and was established by Congress in 1988 to be what its name states: a more convenient way for the public to access the federal court docket—for fees ranging from a few cents to a few dollars per page, depending on how many documents are viewed and downloaded. (U.S. Supreme Court opinions remain freely available through the Court’s website.)

The law that established PACER, Title 28, states that the judiciary “may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.” PACER fees, meant to offset the costs of operating the service, are established by the Judicial Conference of the U.S. Courts and set forth in the Electronic Public Access Fee Schedule.

But it’s easy to see how it could become quite costly for those who need to search hundreds or thousands of documents annually, and how costs to law firms and other legal organizations that rely on access to federal court filings can snowball. These costs are especially onerous to nonprofit organizations with limited resources, not to mention pro se defendants and other individuals.

The PACER system has generated a bonanza for the court system, and the administrative office insists the law’s language permits it to spend proceeds on non-PACER projects such as upgrading courtroom computer systems. But critics, including the plaintiffs, charge that it should be left to Congress to approve these ancillary expenditures, not the courts, and until it does the excess should be reimbursed to users.

Is it proper to generate profits for public domain information?

Critics complain the courts are collecting $150 million in fees annually for a service that really costs them little to provide. Some pundits have even called PACER a scam perpetrated on the public for a service that should be free under the law. Furthermore, the user interface has been criticized as clunky and at least several decades out of date.

It has also been argued that certain functions covered by PACER fees should be funded by taxes instead—for instance, Case Management/Electronic Case Files System (CM/ECF), the system that enables attorneys to file documents electronically and courts to manage case materials that were formerly on paper, which is largely independent of PACER. Instead of charging attorneys to use it, CM/ECF has been funded by fees paid by PACER users.

However, Judge Huvelle found CM/ECF funding a permissible use of PACER fees under both Title 28 and the E-Government Act, because even though the system is separate from and would exist without PACER, the two have a sufficient connection.

Librarians, who generally favor public access to information, have been critical of PACER because even when it is inexpensive to use, it can be daunting and inaccessible to the average person who is not a sophisticated researcher. The requirement to open an account with a credit card and the slowness of the system are particular problems—for instance, the inability to do batch downloads rather than download documents individually, which has been offset to some degree by the emergence of services like PacerPro.

LAC Group uses PACER on behalf of clients and believes that open and free public access to court information is critical, but like other research organizations it has not been in a position to influence a change as have special interest groups such as those who brought the lawsuit.

John DiGilio

John DiGilio is the Senior Director of Research & Intelligence at LAC Group.
He has written for numerous regional and national publications as well as taught college and graduate courses in such topics as business ethics, e-commerce, fair employment practices, research methodology and business law.